tv Key Capitol Hill Hearings CSPAN June 26, 2015 8:00pm-10:01pm EDT
grudges. he was one of the most grudge-carry individuals there was. this lashing out at enemies is what destroyed him. >> talking about the defeat of richard nixon and the association with the nation's 37th president. sunday night an c-span's q&a. [applause] >> some of the initial reaction to the supreme court ruling that same-sex couples in any state have a constitutional right to get married. the scene outside of the supreme court earlier today: [cheering]
columbia recognized gay marriage in some form. there were marriages happening across the u.s. with couples tweeting pictures and posting videos. here is the first couple to get married in dallas texas after being together 54 years. this is from cobb, georgia and the columbus dispatch tweeting many same-sex couples are marrying in the franklin court house plaza. and at the white house, going to be getting ready to project a rainbow symbol in reaction to the supreme court's decision. >> good morning. our nation was founded on a
bedrock principle that we are all created equal the project of each generation is to bridge the meaning of those founding words with the realities of changing times. a neverending quest to ensure those words ring true for every single american. progress in this journey often comes in small increments. sometimes two steps forward, one step back held by the persistent effort of dedicated persistance. and then sometimes there are days like this when that slow steady effort is rewarded with
justice that arrives like a thunder thunderbolt. this morning the supreme court recognized that the constitution guarantees marriage equality. in doing so they have reaffirmed that all-americans are entitled to the equal protection of the law. that all people should be treated equally regardless of who they are or who they love. this decision will end the patchwork system we currently. it will end the uncertainty hundreds of thousands of same-sex couples face from not knowing whether there marriage that is legal in the eyes of one state will remain if they doecide or even visit another. this ruling will strengthen all
communities by offering all same-sex couples the dignity of marriage across this great land. in my second inaugural address, i said if we are truly created equal the love we commit to one another must be equal as well. it is gratifying to see that principle inshirinened into law. this ruling is a victory for the plaintiffs in the case and the gay and lesbian that fought for rights. the victory of their children whose families will be recognized as equal as any other family. it is a victory for the allies
and friends and supporters who spent years, even decades working and playing for change to come. and this ruling is a victory for america. this decision affirms what millions of americans believe in their hearts when all-americans are treated as equal we are all more free. all-american american -- my administration has been defending that idea and why we stopped backing the defensive marriage act and why we celebrated when the court ruled it down. it is why we ended don't ask don't tell and extending full medical visits to federal employees and expanding hospital rights to lbgt americans and
their loved ones. we have made progress in ways that were not even able to image not too long ago. i know the change for our brothers and sisters in the community it has taken way too long. i know americans of good will continue to hold a wide range of views on this issue. opposition has been based on sincere and deeply held beliefs. all of us welcome today's news should be mindful of that fact and recognize different view points and revere the commitment to religious freedom. but today should give us hope that on the many issues we
gravel with often painful, real change is possible. shifts in hearts and minds is possible. those who have come so far on their journey to equality have a responsibility to reach back and help others to join them. because for all of our differences we are one people, stronger together than we could ever be alone. that has been our story always. we are big, bad and diverse and a nation of different backgrounds, beliefs and different stories but bound by our shared ideal that no matter when you are what you look like, how you started out, and who you love america is a place where you can write your own
destiny. we are people who believe every child is entitled to life liberty and the pursuit of happiness. there is so much work to be done to extend the process to every american but today we can say on no uncertain terms that we have made our union a little more perfect. that is the consequence of a decision from the supreme court but more importantly it is a consequence of the countless small acts of courage of millions of people across decades who stood up who came out, who talked to parents,
parents who loved their children no matter what folks who were willing to endure bullying and taunts and stayed strong and came to believe in themselves and who they were and slowly made an entire country realize that love is love. what an extroidinary -- extraordinary -- achievement. the believe that ordinary people can do extraordinary things.
what a reminder about what bobby kennedy said once about how small actions can be like pebbles being thrown into a still lake and ripples of hope cascade outwards and change the world. those countless, often anonymous heroes they deserve our thanks. they should be very proud. america should be very proud. thank you. [applause]
>> after the decision millions responded on facebook and 3.8 million had more than 10 million responses in the first hour from likes, posts, comments and shares related to the decision. some of the top #marriage #marriageequality and day times magazine posted history. and kyw news wrote the republican presidential candidates condemned the ruling. and statements from the gop candidates running for president in 2016. former florida governor jeb bush writing i believe in traditional
marriage and the supreme court should have allowed to states to make this decision and love our neighbor and respect others including those making life time commitments. seeking the republican presidential nomination and former texas governor rick perry, i fundamentally disagree with the court rewriting the law and assaulting the 10th amendment. and chris christie saying i believe marriage should be between a man and a woman and decided by the team. this now changes with the supreme court ruling and immediately following the decision some of the plaintiffs reacted and talked about the
journey to get to the decision and the lawyers who argued for the court. >> good morning, i am from ohio and my late husband and i were together for 20 years before he passed away because of the complications of als. i am here today because my home state fought the recognition of my marriage to john. when the man i loved and cared for passed away from one of the cruelest diseases known to humanity, the state of ohio the state in which i lived, worked and paid taxes continued to fight my right to list my name on john's death certificate. no american should have to suffer that indignity. and that is why john and i and
the 30th plaintiffs part of the lawsuit decided to fight. i know in my heart john is here today. that man cared for and loved me for 21 years through thick skwn thin. millions across the country already know to be true in our hearts. our love is equal. those four words etched on the supreme court equal justice under law applied to us to. all americans deserve equal dignity, respect, and treatment when it comes to the recognition of our relationships and families. marriage equal is coming to every state. it is my hope gay marriage will be a thing of the past and from this day forward it will simply be marriage and our nation is better off because of it.
i hope this decision has a profound affect in reducing the stigma, hurt and discrimination that lbgt people all too often feel when why live our lives openly. at the same time, while we will celebrate today's victory my heart is in charleston. discrimination is alive and well in america. it reminds us of the reality that progress for some is not progress for all. we must be equally committed to make sure all citizens are treated equally and all americans deserve justice. that is when we have united. i want to thank my legal team and heart stein who stood by me every step of the way, thank you
to aclu land of legal and all of the litigators plaintiffs, and organizations who fought for equality. today's victory, our shared victory was only possible because of each and every one of you. i would like to give a special thank you to mary and doug who brilliantly argued our case before the court and affirmed by life and relationship and those of others like me across the country. we owe you a debt of gratitude. most importantly i would like to thank john. for loving me for making me a better man and for giving me something worth fighting for. i love you. this is for you john.
>> mary from gay and lesbian defenders. >> i am a lawyer at gay lesbian defenders i argued question one. today's decision is going to bring joys to millions of families gay and straight across this land. every person in this country who is lgbt realizes they can marry tomorrow. they can marry some day the person they love and make that unique commitment and take on that unique responsibility justice kennedy talked about this morning that is marriage. it is also a great thing for kids who no longer have to question why their parents were deemed unworthy of marriage and the kids can have the same security and protections that marriage provides to families. this is also a great day for our constitution. make no mistakes about it, today the court stood by a principle
in this nation that we don't tolerate laws of disadvantage people because of who they are. there are thousands of people together mourning in charleston because people sometimes are still targeted and face unspeakable acts of violence because of who they are. as we celebrate what is a landmark ruling for love and for justice let us also rededicate ourselves to insuring that every person in this nation can live safely and securely and have the freedoms and opportunities our constitution promises us. we need to do this together and we owe this to future generations and i thank everyone who made this day possible the
plaintiffs, the lawyers, everyone. thank you. >> this is truly a great day for all americans. the court stressed in its opinion that marriage is fundamental. it is fundamental to couples. it is fundamental to the families they build around their marriages. it is fundamental to society. it is hard to believe less than two decades ago, gay and lesbian individuals faced the possibility of being jailed because of the person they loved. today the supreme court validates the full quality under law of all gay, lesbian and transgendered individuals and the person they love and they are entitled to the full measure
of equality and dignity that the constitution promises. and by protecting the right of gays and lesbians the court is protecting the right of all americans because those rights that are fundamental should never bedepend on being able to persuade a majority that they should be tolerated. that is in fact the nature of being right. this vieth -- victory was the product of many decades of hard labor, by many people led certainly by may colleagues mary who has been a leader in this movement for decades, it took the bravery of the plaintiff willing to stand up and insist on their rights and it took many
organizations and the collective efforts of which today realize this momentous decision that we can all celebration. thank you very much. >> now we have greg burke up. >> i am hear with my husband and our two adopted children and we are joined by a co-plaintiff kevin johnson campton, his parents didn't quite make it but we are glad he did. what i would like to start by saying is what i think everyone should say when something good happens in their life. we need to pause and give thanks to god as life long practicing catholics that is how we feel.
we feel this is god's intention and god's work and we embrace it and thank god for it. michael and i have been together for 33 years and legally married for 11 years but not until today did the state of kentucky recognize our union. so this is a watershed day for our family. it is the same for all kentucky residents all americans. it has been a long path in the 33 years. we happen -- we know people have been fighting this fight for decades. many are here today and we thank them all. we also thank so many people especially the aclu who has been so supportive of us the stanford law clinic and our legal team back in kentucky who got us started, clay daniel walton adams being one of them.
evan wilson has been one of the founding fathers of the marriage equality movement. none of us would be here without the foundation laid over the last 30 years. we are grateful to be here for the end. michael and i have been together through a lot of it. we never thought we would see this happen. we are so grateful today we are here to be able to celebrate this. i will tell you what this means for our family. this means that our children will now be able to have two legal adopted parents, two legal parents after 16 and a half years of being raised by the both of us. now we will finally be able to request from the common ppwealth and we will be a legal family.
there is a sang called the strife is or and the battle is done and that is how we feel today. we are overcome today and we are equal. we have learned equal rights to marriage and the freedom to marry for all kentucky residents and all americans. i will say it feels very good. >> director of the aclu liberty project. >> hi there. hi everybody. i am the director of the lgbt project at the aclu. this morning, the supreme court welcomed same-sex couples into the american family and recognized we make the commitment, express love and need protections that are at the core of marriage and that makes today a watershed moment in the
move for the movement for the country as a whole. today is a leap for humanity joy and love. this journey started as far back as 1968 when mildrid and richard loving brought a case here and the ban struck down on interracial marriage. and when jack baker and michael mcconnell filled the first lawsuit in the country seeking the right to marry and the aclu is proud to represent them just as we do with the plaintiffs today. today is a day toe celebrate and a day to say thank you. thank you to all of the people who have been working on this issue, all of the people who came out to family and friends,
all of the advocatingeadvocates who work in course court houses and legislatures. this is something that has overtime changed america's understanding of same-sex couples. we rejoice today because today's decision has made the country more fair. >> we were one of the four plaintiffs for ohio. this started out as a dream to add my name to our son's birth certificate and became so much more important and so much bigger than just that. i don't think anyone dreams more than having their marriage
recognized in a state that we live in and the state that we work in and the state we travel through than we do as a family. when you have kids you do anything that you can to protect them. and what we did was to protect them, we brought this all the way to the supreme court. that is how much we love our kids. and we are so happy that when we return home today that our marriage is recognized just the same as our neighbor's marriage is recognized. >> and we are so proud and thankful to be a part of this case and the historic movement that this is. i want to thank all of our attorneys who have worked effortlessly without them we would not be here and we owe a lot of gratitude and thanks to them. you know so thank you. and then also thank you to all of the people that spent the
last 50 years making this a dream come true. [applause] [applause] >> on death certificate, on birth certificates and we needed that done now. but we had to win marriage equality nationwide in order to solve this ohio problem. well we did that. we are so grateful to be part of this effort and proud to represent these plaintiffs and excited to be part of this historic moment. thank you! [applause] >> susan summer from lamb legal. >> today is a beautiful chapter in a love story.
we saw wonderful decisions on this same date in lawrence v texas and united states v windsor a lucky day for same-sex couples and gay rights. [applause] >> and in this ongoing love story, we see families like the york-smith, mothers who cared so much for each other and for their children they come to the u.s. supreme court and today they sought justice, today they saw an affirmation of their dignity and the commitment they and so many other couples around this country have for one another and their desire to support their children and their families on this joyous day in this american love story we can celebrate what we have done as a
society, our constitution has stood up for those long oppressed, and we also remember and grieve for those in charleston who are suffering today. we are reminded until we have justice for everyone. until we have racial justice and we have justice for all gay lesbian, bisexual and transgender americans are work is not over. let wedding bells ring across the country. young people can know that if they are lesbian or gay when they grow up they can marry the person they love. children will now grow up with dignity and support of parents whose marriages are respected across the land. let wedding bells ring. thank you. [applause] >> and on the next washington
journal more on the supreme court decision making same-sex marriage legal in all 50 states. the supreme court correspondent for the"the wall street journal" will be our guest and we will talk calls, comments and tweets live on washington journal on c-span. first, more of the sights and sounds as the ruling was released. [applause]
dissent. in forming a marital union, two people become something greater than they once were. marriage embodies a love that may endure past death and it would misunderstand these men and women to say they disrespect the idea of marriage. their plea is they respect it and respect it so deeply they seek to find it for themselves. and justice scalia wrote one of the dissenting opinions saying two persons together find freedom like expression and spirituality and whoever that they were freedoms. if intimacy is a freedom it would not be expanded by
marriage. before the oral argument that led to the ruling here is some of of justice scalia from 2009 during an interview with cspan on why he enjoys writing diswantsent dissents. >> when you have the discept -- dissent because it is yours. when you write the majority you have to craft it in a way four other people can jump on and you try to craft it in a way that as many as possible jump on. which means suggesting suggestions like styling that you don't think are the best. but in order to get everybody on board you take it. >> and a look at the white house
where the rainbow colors of the same-sex marriage, lbgt movement are being projected on to the outer walls of the house. 70,000 couples who live in states that did not allow same-sex marriage will get married within the next three years. according to the william's institute at ucla there are already 390,000 same-sex married couples in the united states. the court faces two questions. does any part of the fourteenth amendment com pel states to perform same-sex marriage and the second questions are states required to recognize same-sex marriage from other states. here is the oral argument from april. >> we will hear argument in case number 14556.
go ahead. >> mr. chief justice, may i pes the court. the committed relationships of same-sex couples provide mutual support for the foundation of our society. if a legal commitment responsibility and protection that is marriage is off limits to gay people as a class, the stain of unworthyness that follows on individuals and families contravenes the equality. the abiding purpose of the four fourteenth amendment is to help this. >> what do you do with the windsor case when it comes to matters of domestic relations? >> states do have privacy over domestic relations except their laws must respect the
constitutional rights of persons and it could not have been clearer. here we have a class of people denied the equal right to be able to join in this extensive government institution that provides protection for families. >> you say join in the institution. the argument on the other side is that they are seeking to redefine the institution. every definition i looked up prior to a dozen years ago defined marriage as unity between a man and woman as husband and wife. obviously if you succeed that cower definition will no longer apply. >> what we are talking about is a class of people who are by state laws excluded from being able to participate in this institution. and if your honor's question is about does this draw sexual orientation lines. >> my question is you are not seeking to join the institution. you are seeking to change what
the institution is. the fundamental core of the institution is the opposite sex relationship you want to introduce a same-sex relationship. >> if you are talking about the fundamental right to marry as a core male-female institution the fourteenth amendment provides guarantees that what was viewed as the role of woman, with the role of gay people even, has changed in our society. just as the lawrence court called out the other court for not appreciating the liberty at stake, the same thing is whether gay people share that same liberty. >> one of the problems is when you think these cases, you thing about words and cases.
first of all, there hasn't been time so the respondents say for the federal system. it is about the same time between brown and loving as between lawrence and this case. and that is ten years. that is time for scholars commentators and bar and public to engage. but i don't know how to count the decimals when we talk about millennial. this definition has been with us for millennial. and it is very difficult for the court to say we know better. >> no i don't think this is a question of the court knowing better. when you think about the debate and the place of gay people in our civic society is something that has been contested for more than a century. in the last century, immigration exclusions took place of gay
people and public employment and federal service. these are all things that have been contested. you can say ten years of marriage in massachusetts, but it is in the 1970's the baker case in minnesota reached this court. that was 40 years ago. and 20 years ago the hawaii supreme court ruled in favor of gay marriage and american people have been discussing this. gay and lesbian couples live in communities as neighbors throughout the country. >> you argue in your brief the primary purpose of the michigan law, marriage between a man and woman, was to demean gay people. is that correct? >> michigan's statue and amendment went out of their way to say gay people were anthetical to the good of society. >> did you say in your brief the primary purpose of that was to
demean gay people? >> i think it has that affect. >> is that true in michigan or every state that has a similar definition of marriage? >> if we are talking about the states with constitutional amendments, many of them are similar, a few states have statutes and didn't have amendments and some have none of the above. even if there is no purpose to demean, i feel the commonallyity of statues is they encompass moral judgment. 30 years ago gay people were not worthy of the concern of the government. >> how do you account until the end of the 20th century there was never a nation or a culture, that recognized marriage between two people of
the same sex. now can we infer from that that those nations and those cultures all thought there was some rational, practical purpose for defining marriage in that way or is it your argument they were all operating independently based solely on irrational stereotypes and prejudice? >> your honor the position is times are blind. when you think about sex discrimination and i assume protected by the fourteenth amendment but it took a hundred years for the court to recognize sex classified in the constitution and then we went from a rational base approach to heightened scrutiny acknowledging this is incidious. >> you are not answering my question. can we infer these cites --
societies -- all thought there was a rational reason for this? >> i don't know about other societies. but i think it takes time to see the human being excluded. >> you would not be asking for this release if the law of marriage was what it was millennial ago. it wasn't possible. they would not have opted into the pattern of marriage when was a relationship that was dominate relationship. it was marriage between a man and woman but the man decided the couple would go without it or obligation to follow. there was a change in the institution of marriage to make it egalitarian to make it when it wasn't. and same-sex unions wouldn't fit
into what marriage was. >> that is correct. for centuries we had discovered this and many had different roles and because of equalty and changing circumstances all of those gender differences in the right to spond to the married pair have been eliminated and that is a system in which committed same-sex couples fit well. >> this is not a universal aspect of marriage around the world. the basic definition is between a man and a woman. it does not always say between a man and woman in which the woman is subordinate. >> the thing about marriage is
that it is controlled and regulated by the state. the states create the definition of civil marriage and are accountable for the definitions and exclusions that follow. of course we know that exclusions in case like loving and turner where each case with prisoners and people behind on child support payments and a mixed race couple who wanted to join the institution -- >> not all societies banned mixed-race marriages. in fact not even all states in the country banned -- but do you know of any society prior to the netherlan netherland netherlands that provided gay marriage? >> no, i don't.
>> you are telling me they were all -- i don't know, what? >> what i am saying is it is setting and taking that tradition as it is. one still needs the court still needs a reason to maintain that tradition when it has that affect. >> the issue of course is not whether there should be same-sex marriage but who should decide the point. you are asking us to decide it for this society when no other society until 2001 ever had it. how many states have voted to have same-sex marriage or their legislature or by referendum? >> i think it is 11 isn't it? >> i would also count the state courts that interpret the constitution. >> yes the state court agrees with you. but once again that is not the people deciding it. it is judges deciding it. >> in terms of this millennial
what has been the status or the view of gay people? were they welcomed into the worldwide community? was it free of discrimination? >> not every system around the world has the kind of system with a explicit constitutional guarantee guarantees of liberty and equality. there are 17-18 countries that do authorize same-sex couples in europe and south america. >> that is not a universal opinion. ancient greece is an example.
it was well-accepted but did they have same-sex marriage in ancient greece? >> i don't think they have anything like we had your honor. >> they had marriage didn't they? >> yes. >> and they had same-sex relations. did they not? people like plato wrote in favor of that? >> in favor of what? >> wrote approvingly of same-sex relationships, did he not? >> i believe so. >> so their limiting marriage against same-sex couples wasn't discrimination. >> i cannot speak for ancient philosophers. >> you said marriage is different because it is controlled by the government. but from a historical standpoint, justice scalia was careful to talk about cites.
-- societies -- if you read about the ancient people, they didn't have a government they made it themselves. there were marriages prior to the united states forming and we recognize that. >> our nation made a commitment to individual liberty and equality. >> i would like to hear the precise answer to the question you have been asked several times. >> okay. >> and it takes the form of opposite view has been the law everywhere for thousands of years. among people who were not discriminateing against gay people and suddenly and change
what marriage is to include gay people. why can't those states wait and see whether in fact doing so in the other states is or is not harmful to marriage. that same question has been put in many many ways in the briefs on our subject. you received it in three ourfore different ways and julied like to know so i can hear and understand it just what your response is. >> okay. and i apologize if i haven't. in our system right now with the fourteenth amendment which set forth principles we are governed by and govern our lives, you look at examples like coverture which was wide spread in our nation for a long time and that change in marriage was
deeply unsettling to people. likewise even when race wasn't used as the bases for discripple discriminating in every state. it was pervasive and changing that and individual resisted in the loving case and said please wait and see. 80% of the american public was with virginia on that. it was the question of the individual liberty of the person to do something that was considered a profound change in its time. >> as you rule in your favor in this case and then after that a group consisting of two men and women apply for a marriage license, would there be ground for denying them a license. >> i believe so. >> what would be the reason? >> one is whether the state would say that is such a thing as a marriage but beyond that concerns about cohercie and
consent. >> i didn't understand the answer. >> the state again -- these are four people two men and two women, it is not a polygamist marriage that existed in societies and some societies today. let's say they are all highly educated -- they are all lawyers -- what would be the ground under the logic of the decision you would like us to hand down in this case? what is the logic of denying them the same right? >> number one, i assume the states would rush in and say when you talk about multiply people joining into relationships that is not the same thing we have had in marriage which is a mutual support and consent of two people. even assuming --
>> i don't know what kind of distinction that is because a marriage between two people of the same sex not something we have had before. recognizing that is a substantial break and maybe a good one. why is that a greater break? >> the question is assuming it is a fundamental right it is one of justification. i would assume the states would come in saying there are concerns about consent and if there is a divorce from the second wife does that mean the fourth wife as access to the child of the second wife? who makes the medical decisions in the time of crisis? i would assume there would be lots of issues setting aside consent that don't apply when you talk about two consented adults who want to make that into a commitment for as long as they shall be. that is my answer on that. if i turn to the wait and see wait and see by itself has never
been considered a free standing justification under the fourteenth amendment. we are talking about the petitioners being denied things. we are talking about a second-class status. >> part of wait and see is a tenure of the social science and if the studies are accurate but it seems to me then we should not consult the social science on this. you say we don't need to wait for changes. >> i think the affects of waiting are not neutral. there are profound consequences
that follow this. setting that aside, there have been trials of course in the michigan case, and arkansas and florida about adoption bans these issues have been aired repeatedly and as you have heard there is a social science consensus that there is nothing about the sexual orientation of a parent that would affect childhood outcomes. this isn't just research about gay people but research about the affect of gender. it goes for 50 years. >> you are right. the consequences of waiting are not neutral. how quickly has been the acceptance of your position across broad elements of society. i don't know what the latest opinion polls show. the situation at noon is characteristic. in 2009 it was by referendum they banned gay marriage.
exceptions to what is required for same-sex marriage who has to honor it and so forth. once it's made a matter of constitutional law, those exceptions, for example is it conceivable that a minister who is authorized by the state to conduct marriage can decline to marry two men if indeed this court holds that they have a constitutional right. is it conceivable that that would be allowed? >> no clergy is forced to marry a couple they don't want to marry. >> from the first day we have never held that there was a constitutional right for those two people to marry and the minister is conducting a civil
marriage and is an institute of the state. i institute of the state. i don't think you can possibly allow that minister to say i will only marry a man and a woman, i will not marry two men. that means you could have ministers who conduct real mailer ridges that are civilly enforceable but not at st. matthew's downtown because that minister refuses to marry two men and therefore cannot be given the state power to make a a real state marriage. i don't see any answer to that. >> counselor, there are antidiscrimination laws in various states correct? antidiscrimination laws regarding a people. in any of
those states have ministers been forced to perform gay marriages? >> they are laws, they are not constitutional. that was the whole point of my question. if you make let the state do it you can make an exception. the state can say yes, two men can marry. but ministers who do not believe in same-sex marriage will still be authorized to conduct marriages on behalf of the state. you can't do that once it is a constitutional prescription. >> under the first amendment, that clergy person cannot be forced to officiate a marriage if they do not want to officiate it. >> he's not being required to officiate he's just not given the state's power unless he agrees to use that power in accordance with the constitution.
it seems to me you have to make that exception. you can't exception. you can't appoint people who will then go ahead and violate the constitution. >> whether were talking about a government individual, a cleric it doesn't matter that is something they matter, that is something they will have to work through. in connecticut after the court permitted their special law to deal with these kinds of procreation's _ >> that's because it's a state law. if at the state law you can make those kind of exceptions. if it's constitutional i don't see how you can. if other free state allows marriage than their marriages are allow understate, that will not be the case if we hold this constitutional. and say that the state must marry two men. for example there are many
rabbis that will not perform marriages between jews and non-jews. those rabbis get all the power and privileges of the state even if they have that rule. many many rabbis won't do that. we shall make no law respecting the freedom of religion. >> can we agree that ministers will not have to conduct gay marriages? >> if they don't want to, i believe that is correct under the first amendment. i want to be aware of my time. in question of who decides, it's not about the court. it's about the individual making the choice to marry. >> thank you counsel.
court the opportunity court the opportunity to marry is part of human dignity. excluding those couples from marriage means that we deny the couples and their children the stabilizing structure that marriage affords. what we've been discussing this morning so far is whether this issue of discrimination should persist or it should be left to the processor decided by the court. i'd like to make three points. first, i think it's important to understand that if this court concludes this issue should be left to the political process what they will be saying is that the status that game lesbian couples have is consistent with the equal protection of the law. that is not a wait and see, that is a validation. second, to the
extent the thought is that this can be left to the political process because this issue will take care of itself over time because attitudes are changing what i respectfully submit is that no one can know the future but it seems more likely to me that the outcome we will end up with is something that will approximate the nation and the house divided like we had with racial segregation. we may have many states where they couples can live with equal dignity and status but you will have a minority of states in which gay couples will be relegated to demeaning second-class status and i don't know why we would repeat that history. and third, i want to extend on what she said that what leads us to the critical process will impose enormous cost that this court.
thousands and thousands of people will thousands and thousands of people will live their lives and go to their death without their state ever recognizing the equal dignity dignity of their relationship. you relationship. you could've said the same thing ten years ago. >> haven't we learned a tremendous amount in the last ten years. >> yes your honor i think that's quite a critical point, i do think laura was an important catalyst that brought us where we are today. i think what lawrence did is provide an assurance that gay and lesbian couples can live openly in society as free people and start families and raise families and participate fully in their communities without fear. that has brought us to the point where we understand now in a way even that we did not understand
in the past that gay and lesbian people are full and equal members of the community. what we once thought of as necessary and proper reasons for ostracizing and marginalizing gay couples we now understand do not justify that kind of impression. the whole argument is that the state cannot intrude on that personal relationship. it seems to me that it's different in that they must sanction, they must approve that relationship. that's a different question. >> it is different, i agree. that leads to the second thing that lawrence capitalized for our society is that gay and lesbian people, for the first time in our country can lay claim to the 14th amendment which was just impossible in the past. you're right mr. chief justice this is about equal participation in a state institution. that is different than lawrence but i do think that lawrence has allowed us to
see that the justification for excluding gay and lesbian couples from equal participation was pulled up. the court has raised this question about whether what we are talking about here is a fundamental change in the nature of marriage, and i think the answer to that question is that this case can be decided by thinking about marriage in exactly the way the state defined marriage now. i think it's important to think about it this way. heterosexual couples can enter marriage and they can have families through biological procreation, through assisted reproduction through adoption or they cannot have families at all. >> what are the essential elements of marriage as it exists today? >> the essential elements are the ones that are the obligation of mutual support and responsibility, benefits surrounding average that the state law provides to ensure there is an enduring bond that
continues over time. and last hopefully told us death do us part until the end of time. certainly child rearing is bound time. certainly child rearing is bound up in that. what i would suggest is that the way in which child bearing is done is quite different than what my friends on the other side are doing. >> let's look at two groups of two people. people. the first is the same-sex couple who have been together for 25 years and they get married. either as a result of the change in state law or personal choice. the second, two people are unmarried siblings who lived together for 25 years. their financial relationship is the same as the same-sex couple. they share household expenses and household chores in the same way, they care for each other in the same right is there any
reason the law should treat the two groups differently? >> i'm not sure the law differently? >> i'm not sure the law allows the law allows a hundred% of heterosexual people to enter into a marriage that is consistent with their sexual orientation. in these states it permits 100% of gay and lesbian people from entering into a marriage that is consistent with their sexual orientation. >> as far as the benefits that federal law confers on married people such as in windsor the effect on state taxes, will be the reason for taxes, will be the reason for treating those two groups differently? >> i'm not sure it would be, but marriage is different than that it is an enduring bond between two people. to get back to childbearing, i think this is important. i understand the caution argument is what respondents are saying is that they want to exercise an attitude of caution
because concern about the welfare of children raised in same-sex marriage households. there's a significant problem with that rationale. right now, today hundreds of thousands of children are being raised in same-sex households. that number will only that number will only grow. all of the evidence so far shows you there isn't a problem. the state argument is quite ironic in this respect when it denies marriage,. >> all the evidence shows there is no problem? >> i think all of the reading organization has said there's a consensus and that. >> i think some of the breed briefs contradicted that. >> even beyond that, i think the point i'm trying to drive at is you have hundreds of thousands of children raised in same-sex households now and what the caution argument leads you to is the conclusion that those hundreds of thousands of children don't get a stabilizing
stretcher in marriage. >> i'd like to follow up we have a concession that clergy will not be required to perform same-sex marriage. there's going to be harder questions. will a religious pool that has married housing afford such housing to same-sex couples? >> i'd like couples? >> i'd like to make three points about that if i could, mr. chief justice. >> the first one is of course this course courts ruling addresses what the state must do under the 14th amendment. the second point is when 14th amendment. the second point is when you get to a question like the one you're on her, that will depend
on how the states work out the balance between the civil rights law. whether they decide there will be civil right enforcement of discrimination based on sexual orientation and how they decide what kind of accommodations they will allow under state law. they could well, different states could strike different balances. >> it's a federal question if we make it a matter of constitutional law. >> the question of how states use their enforcement powers up to the state. >> you have endorsement power to. >> yes that's true but there is no federal law banning discrimination on sexual orientation. that's what they will have to work out. the third point i would make your honor, is that these issues will arise no matter which way you decide this case because these questions of accommodation will arise in situation in states where there is no same-sex marriage. in fact they have arisen many times. times. there's a long history in new mexico in which a court denied and that did not arise out of marriage. that was from a commitment
ceremony. >> would the same apply to a university or college if it opposed same-sex marriage? >> i don't think i can answer that question without knowing more specifics. it will certainly be an issue and i don't deny that. it will be an issue. >> let me ask you this. >> question, your time is going up. i'm interested in your comments comments what do we do with the
language that we have to define in such an narrow way? >> we do recognize there is a profound difference between liberty and equality. we haven't made the fundamental rights and i don't think it would be appropriate for me to comment on that. >> why didn't you make it a fundamental right? >> we see there's a connection but for reasons of these questions, equal participation in the state and if i i could if i can exceed more time and i have left, i'd like to suggest this. what respondents are ultimately saying to the court is that with respect to marriage, yes gay and live lesbian couples can live openly in society and yes they
can raise children yes they can participate fully as members of their can communities. marriage, not yet. that has to be worked out later. the petitioners in these gay and lesbian couples. >> or not. they're saying leave it to the people and it will be worked out later or not but what these gay and lesbian with these gay and lesbian couples are laying claim to the promise of the 14th amendment now. it is emphatically the duty of the court, in this court, in this case, as it was in lawrence, to decide what the 14th amendment requires. what i would suggest is that in a world in which gay and lesbian couples live openly as our neighbors, raise their children side-by-side with the rest of us, they contribute fully as members of the community, that it is amply untenable to suggest they can be denied the right of
equal participation in the institution of marriage. whether it can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equals. gay and lesbian people are equal, they deserve equal protection of the law and they deserve it now. thank you. >> thank you general. >> thank you mr. chief justice in may i please the court. respondents are not saying we are respondents are not saying we are not ready yet. they are echoing questions that the fire was asking. it's about who gets to decide that question is it the people through the democratic process or is it the federal court? we are asking you to concern every individuals marriage interest.
>> nobody's taking that away from anybody. every single individual and the society chooses if they can their sexual orientation whether they're married or not married. there are some gay people who will choose not to marry just as there are some heterosexual couples who choose not to marry. were not taking anybody's liberty away. >> were talking about the fundamental liberty interest in deciding the question of what marriage means. >> i thought i heard the answer i thought i heard the answer to the question being given in respect to tradition for 2000 years and the democratic ballot box and so forth was quite simple. what i heard was one marriage is fundamental. certainly that's true for 10000
years. and, marriage, as the states administer it is open to vast numbers of people who both have children, adopt children, don't have children all over the place. but there is one group of people whom they won't open marriage too. so they have no possibility to participate in that fundamental liberty. that is people of the same who wish to marry. we ask why. the answer we get is well people have always done it. you you could've answered that one the same way we talk about racial segregation. certain religious groups do think it's a sin and some clearly think there is no question about their sincerity but it is about a religious issue for some people.
when i look for reasons three, four and five, i don't find them. >> what are they? so therefore. >> it gives you an opening to say what all those reasons are. >> those answers, one and two are not our answers. our answer number one is that the marriage institution did not develop to deny dignity or to give second class status to anyone. now imagine a world today where we had no marriage at all. men and women would still be getting together and creating children but they wouldn't be attached to each other in any social institution. the marriage on the other side is that marriage is all about love and commitment and as an aside society we can agree that's in our best interest.
we wouldn't solve it by saying let's recognize those relationships and who they're committed to. >> the principal argument that you make of same-sex marriage doesn't advance the state incurs interest in regulating procreation, let's assume procreation, let's assume for the moment but that is so. obviously same-sex partners cannot procreate themselves. is there in addition to that are you saying that recognizing same-sex marriage will infringe upon that state interest or will harm that state interest in regulating procreation? >> we are saying that but even leaving that aside,. >> all of the benefits that a marriage of fords could still be available so were not taking away anything.
heterosexual couples would have the very same incentive to marry, all the benefits that come with marriage that they do now. >> justice kagan and justice ginsburg it has to do with the societal understanding of what marriage means. it has more to do with an individual couple and what marriage means to them and their children. when we are binding children to their biological mom and dad that has we don't do that. we don't do that on any level. how many married couples walk away from their children? it's not that the institution alone does that and without it that is going to stay in the marriage. he made a choice.
>> it should be gender-neutral. some mothers do the same thing. my point is i'm not sure how i get to the point that justice breyer is making. how does withholding marriage from one group, same-sex couples increase the value to the other group? >> there's all kind of societal pressures that are dealing king do you have to answer that question? >> isn't a burden to show that it will harm marriage between a
man and woman if you allow to men or two women to marry? >> is that your burden? i thought your burden was simply to show that the states reason for this institution is a reason that has nothing to do, that is inapplicable to same-sex couples. >> you are exactly right. that's why i hope we can prevail. >> i don't think that is right. i think before something is fundamental to a society and individuals as marriage of fords, and exclusion of this kind to be made in that institution, the state needs some reason for that exclusion. it's a real opportunity to tell me what that reason is. >> the reason for the exclusion rather than the reason for the noninclusion. >> it wasn't a reason for a noninclusion. the reason there's harm if you change the definition is because in peoples mind married and creating children don't have
people's mind married and creating children don't have anything to do with each other then what you expect? you expect more marriage >> do you think that's what it would do? if one allowed same-sex marriage we would be announcing to the world that marriage and children have nothing to do with each other? >> not in the abstract. >> not in the abstract and not in the concrete. >> let me give you an example. were talking about example. were talking about something that will change the meaning of an institution over generations and you have to think about how divorce change this over the years two. i want you to think about to couples that have been married for five years and each have a 3-year-old child. one grows up believing that marriage is about keeping that
couple bound to that child forever. the other couple believes that that marriage is more about their mission no commitment to each other and if that commitment fades than they may not stay together. a reasonable voter, which is what were talking about here, could believe there would be a different outcome if those two marriages were influenced by those two different belief systems. ideas matter, matter, your honor. the out of wedlock birth rate -- >> that assumes that same-sex couples don't understand the sacredness of marriage. they they do understand and they know that they can't procreate but they have a dignity that can be fulfilled. you are arguing that this harms conventional marriage. that was the argument you made as i understood it. >> justice kennedy to be perfectly clear, the state of
michigan values the dignity of every human being no matter how they choose to live their life. that's not what this case is about. our point is that when you change something that is as fundamental of the marriage definition, the dictionary definition which has existed for millenniums and you apply that over generation, those changes matter -- >> i believe that's true, but the fact is a very high% of opposite couples don't have children. so where is this going? how do we get from what i just said to some kind of rational or important distinction? >> we are concerned of all the children. children of opposite couples and same-sex couples. there are 72 million children in this country. if we change the definition of
marriage, a reasonable voter, again looking at those two couples i just described, one believing that marriage is about staying with their kids and one believing it's about emotion and commitment could have different results. >> the problem is, even under a rational basis standard, do we accept a feeling? justice kagan put the argument quite clearly, clearly with something as fundamental as marriage, why would that feeling, which doesn't make any logical sense control legislation? >> it doesn't make any. >> it doesn't make any logical sense to you that people think it's more about love and commitment versus staying with your children that there will have different consequences? >> heterosexual couples and everyone has their own vision of what marriage is.
what the state confers is certain obligations. they are willing to accept those. whether or not a couple stays together, those. whether or not a couple stays together, they are bound to that child. they have to support the child care for him or her. when people choose voluntarily that happens in same-sex or heterosexual couples. >> right, but what you're describing is couples. >> right, but what you're describing is different ways that people think about marriage. certainly it's a harm to a child when an opposite couple gets divorced as opposed to stay together forever. i think we can all agree that we want children to stay bound to their biological mother and father if possible. >> i think they should be bound to their parents because there's a lot of adoptive children and they're not thinking of biological. >> oh sure that's a situation
where the child doesn't a situation where the child doesn't have the biological mom and dad for whatever reason. so that's a different state interest. >> suppose there's a state with a varied procreation view of marriage, the kind you are talking about. so emotional commitment and support, the state thinks is not the purpose of marriage and they want their marriage licenses to be addressed only to the things for procreation purpose. so they say, were not giving marriage licenses to anybody who doesn't want children. so when people come in and ask for a marriage license, they just ask a simple question, do you want children? if the answer is no, the state says no marriage license for you. would that be constitutional? >> that would go against the states interest is he just described it. >> know the state has not a perfect correlation but the state says the best way to
promote procreation centered view of marriage is just to limit marriage to people who want children. so that's what it does. would that be constitution? >> justice kagan, even would that be constitution? >> justice kagan, even people come into a marriage thinking they don't want children often end up with children. >> what is your answer to the question? >> would question? >> would it be constitutional? i think it would be an unconstitutional invasion of privacy to ask the question. >> asking if you want children would be unconstitutional? >> yes i think so. [laughter] >> a 70-year-old man is still capable of having children and you want to keep that within the marriage. but leaving that
marriage. but leaving that aside, what you're talking about is a tailoring issue on a rational basis. over inclusiveness is not something you have to worry about. even if you applied some type of heightened scrutiny, people get married thinking they can't or won't have kids in and up with children. the inclusion of those couples is against the state interest because of their idea. >> you're the one who said rational basis applies. this is a state that has decided that it wants the procreation centered view of marriage and it's going to exclude people who don't want children. it's going children. it's going to exclude people who can't have children and the question is would that be constitutional? it seems to me it flows directly from your argument that it would be constitutional. the problem is, when we hear about those kinds of restrictions in every single one of us said that can't be constitutional. i'm suggesting the same might be true here. >> that it can't be constitutional to keep the
marriage definition that has been applied for thousands of generations? >> keep it as you have described it as so procreation centered that the state can exclude everybody who does not serve that purpose for that reason alone. that's the reason you have given. >> that's the primary interest. if they're so concerned about the over inclusiveness or the under inclusiveness, the other definition of marriage suffer from that same. it also excludes relationships and families who have are ready been discussed who might benefit from having state recognized marriage. other people have no emotional connection they get married for other reasons. >> marriage is meant to provide a lasting bond between people who love each other and make a commitment to take care of each
other. do you see a way in which that logic can be limited to two people who want to have sexual relations? why would that not extend to larger groups, like the one i mentioned earlier why wouldn't it extend to unmarried siblings who have the same relationship? >> it would be overinclusive and underinclusive. the state doesn't have an interest in love and emotion at all. if we have a close friendship, the government doesn't regulate when that relationship begins or ends. it is in about love, it's about finding children to their biological parents. >> when you simply point out that many gay people want to have children so i'm not certain how that works but i'll think about it. the other thing that would be
helpful to me is there is an argument being made, if not by the government, and i'd like your response, that marriage is about as invasive a right there is that the constitution and amendment 14 does say you cannot deprive a person of basic liberty without due process of law and to take a group of people where so little distinguishes them from the group you give the liberty to, at least in terms of a good reason not to and you don't let them participate in the state institution, that that violates the 14th amendment. now the reason i am interested in that is we don't get into this more scholastic effort to distinguish between rational
basis and it's not going to get into all these questions of balancing free religion, of rights versus gay rights and so forth. we avoid that in this case. perhaps that's wise if not legally required, which it may be. i would like your response to that aspect of the other side's argument. >> i think with respect to the right of privacy which you identified, the court already answered the question and the majority opinion in windsor when you said the limitation of marriage -- it wasn't a right of privacy. >> what i said was the right to be married is as basic a liberty, a liberty, a basic fundamental liberty, not the right of privacy. the right to be married, which has existed for all human
history is a fundamental liberty. when they offer it to almost everyone but excludes a group, i'm just repeating myself, but i want that question answered to the best of your ability please. >> i'm using right to privacy interchangeably with the fundamental liberty. it has always thought to be fundamental. you can change _ >> i suppose i don't except, for arguments sake your notion that the right of privacy and the right to be married of the same thing. now deal with my hypothetical where there are different things and on that assumption i would like to know what you think of the argument. >> i think windsor is despondent
on that. >> the problem is i don't except your starting premise. the right of marriage is embedded in our constitutional law. it is a fundamental right. the issue is you can't narrow it down to say but is gay marriage fundamental? is black and white marriage being treated fundamentally? the issue was starting from the proposition of, is the right to marry fundamental? then, is it compelling for states to exclude a group of people? for me it's as simple as the question. >> justice sotomayor, i'm not arguing with how broadly or narrowly we should be arguing
about the definition of marriage. you are ready marriage. you are ready answer that question in windsor. what's been fundamentally understood as a limitation is the opposite nature of marriage. >> i'm not sure it's necessary to get into sexual orientation to solve the case. the differences based upon their different sex. why isn't that a straightforward question of sexual discrimination? >> it has always involved treating classes of men and women differently. that's not what we have here. differently. that's not what we have here. more fundamentally than that the court has recognized that it is appropriate to draw lines based on sex if it is related to
biology. if you recall the case where we had a law that determines citizenship of children born to devorah store unmarried individuals overseas. the law said if it was a child of a citizen mother they automatically had citizenship. if citizenship. if it was the father than the father had to prove paternity and make child support payments up to age 18. that is obvious discrimination. >> we know who the mother is but we can't be sure who is the father. >> that was the justification for the proof of parenthood. i would like to quote from the opinion about the second interest about the child
support. the court said the government had an important interest in ensuring an opportunity to have a meaningful parent-child relationship between the biological father and the child and the law advance that interest in this is why. a policy which speaks to foster the opportunity from meaningful child bonds to develop has a substantial bearing on the governmental bearing of the bond. that is the exact same interest bond. that is the exact same interest that the respondents are dancing here when they talk about the definition of marriage. >> the status of the parent. here its total exclusion. the district doesn't have to do anything other than what the mother did. now you have to do something it's not much.
>> the gist of the court opinion was that the state had an interest in the biological father child bond. not only including it but making sure it's sustained. that's the exact same interest that the state has when they try to bind children to their biological parents. if you change that meaning, over the long haul, it has consequences. i started to say a few minutes ago that the out of wedlock ago that the out of wedlock birth rate has gone from 10% to 40% from the 1970s until today. i think everyone would agree that's not a good result for children. to the extent that you are changing the meaning of marriage -- but that's not because of the recent gay marriages, the rate has remained constant since they change their law. >> right but that's a very short timeframe.
>> you're the one who brought the statistic up. [laughter] and under your view, it would view, it would be very difficult for same-sex couples to adopt some of the children. i think the argument is against you. to the basic point where you began with some premise, that only opposite couples can have a bonding with the child. that was very interesting and it's just the wrong premise. >> that's not my premise. the premise is that we want to encourage children to be bound to their biological mother and father. we don't disagree at all that same-sex couples can bond to their children. we hope that's the children. we hope that's the case. >> this is what i think is difficult for some people is that it's hard to see how same-sex marriage discourages same-sex couples from being bonded to their children. >> if you're changing them
meaning to one that's based on emotional commitment than adults could think that this relationship is more about the adult and not about the kid. that's not the case of the plaintiff in this case. we all agree there bounded to their kids and have their best interest at heart. were talking about decades over time when laws change, there are consequences to that. what this comes down to is not whether you agree or disagree with me or a reasonable voter, it's whether in drawing these policy lines, every marriage definition excludes and includes some people that the possible harm if we change that definition, is that something _ >> what exactly is your response to the fact that if we assume that for the basic purpose of marriage is to encourage an emotional bond between parents and children and that allowing gay people to marry will weaken it? after all, some non- gay couples
have children and some don't. some gay people marry and have children. and some don't. what's the empirical connection? that's what i have a problem within your argument. >> justice breyer it's relatively simple. if you break the link of marriage for creating children you'll have more children created outside the bond of marriage. that's government conduct. >> the empirical part of what you just said, if you believe that marriage is i just heard you say it and i just heard you say it, and i didn't follow it. >> you're changing slightly the states interest. your stocking you're talking
about. >> i've never heard of the state that says it's our state policy that we don't like adoption. i've heard many states adoption. i've heard many states saying it's very important to treat adoptive children the same way you treat and actual children. i've never heard the contrary. >> your argument depends on that. >> let me respond to that. we love adoptive parents. that. we love adoptive parents. they are heroic. you are talking about children who have, for whatever reason, have already been separated from their biological parents. we were talking about adoption that's an entire different social issue that get solved with other state interest. what were talking about here is that world -- >> they are connected. >> the related sure.
>> if you think about who are the potential adoptive parents many of them are same-sex parents who can't have their own children and truly want to experience the kind of bond that you're talking about. how does it make those children better off? >> we allow someone regardless of their sexual orientation to adopt. >> you're saying the marriage and the recognition of marriage helps the children, aren't you? you'd rather the whole basis is to have children and marital households. >> right, we right we wanted to be the glue. >> more adoptive children and more marital households seems to be a good thing. >> that's a policy issue and reasonable people can decide. >> how is that not a good thing? i'm not trying to put words in your mouth, i'm just saying it
just seems to be inexpressible about what you have said about your policy interests. >> because, if you change the societal meaning of what marriage is in society and society has already started to move away from what we always understood marriage to be with that link between parents and the biological child per the more that link is separated, that. the more that link is separated, that link will not be maintained because it's more adult centric and not child centric. you have more children being raised without both parents most of the time without a father but that's not always the case. it's not unreasonable to think about the consequences of changing a definition that has existed for millennia. it might have consequences. to say otherwise that it's irrational for a person to think that changing an idea about something
will have no effect on how people think about that. >> it won't change their idea of marriage. marriage today is not what it was. it was a relationship of the dominant man to a woman. that ended in 1982. with. would that be a choice where the state would be allowed to have? >> no. >> to return marriage to the way it once was? >> no because they're the state didn't have a legitimate interest making anyone subservient to anyone else. the state's entire interest comes out of the fact that we want to forever link children with the biological mom and dad when possible. i want to get back to the point of the marriage definition that was proposed. no matter where you draw the
line it will leave line it will leave someone out. what they're asking you to do is to take an institution which was never intended to be dignitary and tens of thousands of other children who don't meet their definition will likewise be left out and suffer those dignitary harms. when you're talking about a spectrum of marriage definitions, potential harms will exist on both sides. that is the quintessential place for the democratic process to work. >> i don't understand that it's not dignity bestowing. i thought that was the bestowing. i thought that was the whole purpose of marriage to bestow dignity on both the man and woman in the marriage. gay couples want to have that same right.
>> you're missing my point. if we go back to where marriage doesn't exist in the state says how do we link together these children with their mother and father when possible. the glue is marriage not necessarily dignity. the state has no interest dignity. the state has no interest in bestowing or taking away dignity from anyone. certainly it's not the states intent to take dignity away from same-sex couples or anyone based on sexual orientation. >> i'm puzzled by that. >> the main point by that is that the states don't intend to bestow dignity but if you turn it into a dignity bestowing institution, then other people who are excluded would face
harm. when you're talking about balancing harms and letting people decide, the most fundamental of questions, how do we define marriage in our society, it has other important things to think about as well. one of those is when people have to act through the democratic process, it forces them to sit down and discuss an issue and tried to persuade each other to reason, love and logic. we've already seen that happen in 11 states. that could happen and many more very quickly. when you act social change at this magnitude to the federal court it's cutting off the dialogue. it saying one group gets their definition and the other is irrational. that's not the way our democratic process is supposed to work. there are long-term harms to our country work. there are long-term harms to our country into that fundamental liberty interest to govern ourselves. all the things this court talked about. if you take away that dynamic and it's a court imposed definition as opposed to one enacted by the people through the democratic process. >> of course we don't live in a
dim marker see we live in a constitutional democracy and the constitution allows marriage. we have to decide what those are in whether the constitution speaks to something. >> that is right but as we discussed and we've seen here there isn't a constitutional limit that tells people that the marriage definition that they've heard for millennia is so on comes unconstitutional. we haven't seen that these laws should be struck down. >> that's the question, whether there are these equality limits. let's go back to the liberty that you are just talking about. the right to marry, we've had many cases and what we've talked
about is the right to marry. is there a right to interracial marriage? is there a right to marry if your prisoner? we just said there is a right to marry. that is fundamental and everybody is entitled to it unless there is some good reason for the state to exclude it. why shouldn't we adopt the exact same understanding here? >> you just mentioned several cases in every single one of those talked about marriage in the context of men and women coming together and creating children. >> the question was, there might be a black woman and a white man or vice versa and there was no
inquiry into whether that was a traditional form of marriage. if there had been such an inquiry in this country they would've come up pretty short. >> historically that wasn't part of the tradition and. >> it's not a part of the tradition, that's right. it's irrelevant. there's no good reason for it not to be. >> discrimination based on race had nothing to do with the states interest of linking parents to their biological children. it was also liberty case. that's exactly what this case is. it shows how liberty and equality are intertwined. >> know because of the couple could not get married, married they could not enjoy private intimacy at all because it was subject to criminal prosecution
and jail time. all of these cases that we have been talking about where the court recognize the fundamental right to marriage, there were other laws that prohibited if the states interest in fostering procreation between natural parents than it seems to me that issue did that. it said you can get married. we can't deprive the prisoner of that even if the prisoner and presumably those serving life sentences have no chance for procreation.